Opinion
January 24, 1949.
1. Statutes — when "may" is used in mandatory sense.
The statute providing that the board of supervisors "may" issue bonds for a consolidated district on the petition of the majority of the qualified electors of the district means that the board shall do so when and if they find all the jurisdictional facts to exist, since the statute was enacted in the public interest. Sec. 6370, Code 1942.
2. Board of supervisors — petition for issuance of bonds of consolidated school district — judicial determination of jurisdictional facts.
When a statutory petition for the issuance of consolidated school bonds has been presented to the board of supervisors it becomes the duty of the board to decide whether the majority of the qualified electors of the district had joined in the petition and to determine whether all the other jurisdictional facts required by the statute are present, and inasmuch as the determination of those issues involves the exercise of judicial functions, the action of the board may not be controlled or reviewed by mandamus. Sec. 6370, Code 1942.
3. Mandamus — appeal — petition for issuance of consolidated school district bonds.
When a board of supervisors acts upon a petition for the issuance of consolidated school district bonds and rejects it for reasons which it deems sufficient or for no reason at all without adjudicating the necessary jurisdictional facts to exist, the remedy of the petitioners is to appeal to the circuit court, and not by way of resort to mandamus, for mandamus could do no more than to compel the board to act. Sec. 1195, Code 1942.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Quitman County; E.H. GREEN, J.
E.C. Black, for appellant.
It will be observed that both Sections 6370 and 6532 provide that the Board may issue bonds, thereby clearly leaving it within the discretion of the Board to issue or not to issue the bonds. The petition filed did not require the Board to perform a ministerial act required of the Board under any law or statute, but presented to the Board a judicial or quasi judicial question, upon which question the Board was required to hear proof and to decide both questions of fact and law and then to make a finding and an adjudication. This the Board did in its order and the petitioners had no right and were not entitled to require the Board to set out in its order its reason for finding and adjudicating as it did.
There are any number of reasons for which the Board may or could have refused and dismissed the petition. In the case of the Board of Supervisors of Rankin County v. Lee, et al, 147 Miss. 99, 113 So. 194, which case is on all fours with the present case, the Board dismissed the petition without assigning any reason therefor and in that case the lower court granted a writ of mandamus on the petition and on appeal the lower court was reversed and this court in that case said: "For aught that appears in the judgment rendered, appellants found that the petition was not signed by the required number of qualified electors". And in this case the court also said: "We are of the opinion that is not a case for the extraordinary writ of mandamus; that appellee had a plain, adequate, and reasonably speedy remedy at law under Section 80, Code 1906, by appeal to the Circuit Court from the judgment of appellant rejecting the petition for the bond election".
Section 80 of the Code of 1906 is brought forward in the Code of 1942 as Section 1195.
Where a discretion is left in an inferior tribunal, the writ of mandamus can only compel it to act, but cannot control the discretion.
Madison County v. Alexander, Walker 523; Board of Police v. Grant, 9 S M 77, 47 American Decisions Dec. 102; Swan v. Gray, 44 Mont. 393; Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State Board of Education v. West Point, 50 Miss. 638; Monroe County v. State, 63 Miss. 135; Greenwood v. Provine, 143 Miss. 42, 108 So. 284, 45 ALR 824; Alex Loeb, Inc. v. Pearl River Junior College, 171 Miss. 467, 158 So. 333; Clarksdale v. Harris, 188 Miss. 806, 196 So. 647.
Mandamus will not lie to review or control the acts of Boards in respect of matters as to which they are vested with discretion.
55 C.J.S. 219; Thomas v. Price, 171 Miss. 450, 158 So. 206; Love v. Lincoln County, 165 Miss. 860, 147 So. 877; City of Jackson v. McPherson, 158 Miss. 152, 130 So. 287; State v. Quitman County School Board, 181 Miss. 819, 181 So. 313.
Mandamus is proper remedy to compel a Board to act and pass judgment on matters within its jurisdiction when they neglect or refuse to take any action at all, but cannot be compelled to act or render a decision in any particular way. 55 CJS 225; Thomas v. Price, supra.
Mandamus will not lie to compel an officer to perform a duty which he has not refused to perform. 55 CJS 226; Anderson v. Robins, 161 Miss. 604, 137 So. 476.
Section 405 of Code 1892 provided that the bond of the chancery clerk shall be approved by the president of the Board of Supervisors. The court in the case of Shotwell v. Covington, 69 Miss. 735, 12 So. 260 held that this was a judicial act and mandamus did not lie. Swan v. Gray, 44 Miss. 393.
Mandamus is an extraordinary writ and will not issue where there is a plain, speedy and adequate remedy available in the ordinary course of law. 55 C.J.S. 41; Robinson v. Board of Supervisors Itawamba County, 105 Miss. 90, 62 So. 3; State Board of Education v. West Point, supra; McHenry v. State, 91 Miss. 562, 44 So. 831; Board of Supervisors of Rankin County v. Lee, et al., supra; City of Jackson v. McPherson, supra.
Mandamus is not a remedy to review or control judgment of a body undertaking to exercise discretionary power and will not lie where there is an adequate remedy by appeal. Validation of Bonds McNeil Separate Consolidated School District, 185 Miss. 864, 188 So. 318; State ex rel. Attorney General v. Quitman County School Board, supra.
The petitioners recognized in their petition that the petitioners presented a judicial question to be passed upon and determined by the Board. The lower court also recognized this fact in its order overruling the demurrer and granting the prayer of the petition in that it ordered the Board to adjudicate whether or not the petition contained the genuine signatures of a majority of the qualified electors; to adjudicate whether or not the amount of bonds sought to be issued exceed the statutory limitation of the amount of such bonds that might be issued.
It occurs to me that there could be no question but that the petition filed and presented to the Board presented judicial questions to be determined by the Board upon evidence produced, or other means.
It is the position of appellant that the questions presented to the Board by the petition filed herein was a judicial question, which the Board acted upon when it rejected, disallowed and dismissed the petition and since they acted upon the judicial questions presented mandamus would not lie.
T.N. Gore, for appellee.
The determining point to be decided in the first question is whether or not the word "may" is mandatory as used in Section 6370 of Code of 1942, which is, in part, as follows: "On petition of the majority of the qualified electors residing in any Consolidated School District, the Board of Supervisors may issue bonds for such Consolidated School District in the manner provided for by law, to erect, repair and equip school buildings, teachers' homes, school barns, transportation vehicles, and for purchasing lands for schools". Is it to be construed as vesting discretionary powers in the Board of Supervisors and whether the duties of the Board in the case at bar are ministerial or judicial in their nature? Does the word "may" simply authorize the Board to issue the bonds provided for or does it direct them to do so?
From the statute itself it is evident that it was passed by the legislature for the purpose of enabling the people to build and equip school buildings. It was passed for the benefit of the people and the school children and not for the benefit of the Board of Supervisors.
The only part that the legislature intended for the Board of Supervisors to take in the issuance of school bonds or evidences of indebtedness of a school district is the determination of jurisdictional facts and to serve as the administrative or fiscal agency through which the bonds are issued.
Their duties are ministerial in character. A ministerial act has been defined as "One which a person or body performs upon a given state of facts, in a specified manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of doing the act". A E Encycl. of Law, 2nd Ed., Vol. 20, P. 793, Bouvier's Law Dictionary, Century Ed., P. 807; LeMoine et al. v. DuCote et al., 12 So. 940.
"In statutory proceedings, every act which is jurisdictional or the essence of the proceeding or prescribed for the benefit of the party affected is mandatory." Gallup v. Smith, 59 Conn. 354, 12 L.R.A. 353 and note. In the case at bar, the Board of Supervisors was asked to determine whether or not the petition for the issuance of the bonds in question contained the genuine signatures of a majority of the qualified electors residing in the district and declined to do so. The Board of Supervisors was asked to ascertain all of the jurisdictional questions and declined to do so.
This was a statutory proceeding and the facts alleged in the petition and asked to be adjudicated were merely jurisdictional. If there were not the genuine signatures of a majority of the qualified electors of the district on the petition, then the Board would not have jurisdiction to proceed with the issue. If the amount of bonds sought to be issued exceeded the statutory limitation, then the Board would lack jurisdiction. The statute itself, from its very nature, was prescribed for the benefit of the people. We would like to call attention to and sincerely urge the court to read the decisions annotated in the note following Gallup v. Smith, supra, which is an extensive coverage of this point and others brought out in this brief.
It is also easily seen that the public rights of the people of the school district are involved in any refusal of the Board of Supervisors to act. The Board of Supervisors is the administrative or fiscal agency through which the people act in the issuance of bonds. It is no more reasonable to assume that the Board of Supervisors has the right to refuse to issue bonds for a school district than it is to assume that the County Superintendent of Education has the right to refuse to issue warrants when ordered by the Board of Trustees of a school district.
In the case of Supervisors of Rock Island County v. United States ex rel. State Bank, 4 Wall 435, 18 L.Ed. 419, Mr. Justice Swayne in the opinion of the court stated: "The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language — whenever the public interest or individual rights are involved and call for its exercise — the language used, though permissive in form, is in fact peremptory.
In the case at bar, Section 6370, of Code of 1942, was enacted for the benefit of the people of the school districts and contemplated the issuance of schools bonds. It is therefore madatory and not merely permissive. Refusal by the Board of Supervisors to issue the bonds constitutes a transgression of the rights of the people of the school district.
In the case of Tarver v. Tallapoosa Commrs. Ct., 17 Ala. 527, it was stated: "Permissive words in respect to courts or officers are imperative in those cases in which the public or individuals have a right that the power so conferred be exercised".
We have presented to the court argument backed by the leading authorities in point that the powers of the Board of Supervisors in this case were of a ministerial or administrative character and not of a judicial one. The only adjudicating that they were required, permitted by law, or even asked to do could come under the head of "arithmetical adjudication", that of adding one list of names and determining whether or not it was more than half of another list of names and that of adding one group of figures and determining whether or not it was more than 15% of another group of figures. Could there be any discretion in determining whether or not 8 x 4 equals 32?
It is said by counsel for appellants that the remedy was by appeal under Section 1195 of Code of 1942 which is in part as follows: ". . . And if the judgment be reversed the circuit court shall render such judgment as the Board ought to have rendered". Just what would be the procedure of the circuit court in the issuance of the bonds of the Walnut Consolidated School District of Quitman County, Mississippi?
In the case of Board of Supervisors of DeSoto County v. Pidgeon Thomas Iron Co., 75 So. 117, Justice Ethridge in delivering the opinion of the court stated: "Appeals only lie from judicial acts of the Board of Supervisors to the circuit court, and the remedy for enforcing or preventing administrative acts of the Board is either by mandamus, injunction or prohibition. In a court of law mandamus will lies to compel the performance of a public duty enjoined by law . . .".
In the case of Board of Supervisors of DeSoto County v. Dean, 82 So. 257, Chief Justice Smith in delivering the opinion of the court stated: "the relief sought is the enforcement of the performance by the appellant of a ministerial, and not of a judicial act; consequently a writ of mandamus is the proper remedy".
It is clear therefore that in event relief is sought from a judicial act, the remedy is by appeal. It is equally true that if the relief sought be from a ministerial act, then the remedy is by mandamus.
This is a proceeding to compel the Board of Supervisors of Quitman County by writ of mandamus to issue bonds of the Walnut Consolidated School District in the sum of $60,000, "the proceeds thereof to be used for the purpose of erecting, constructing, repairing and equiping school buildings for said district and for repairing the present school buildings of said district and for all purposes for which bonds may be issued under Section 6370 of the Mississippi Code of 1942 and other applicable laws . . ." There was a demurrer to the petition for mandamus, which was overruled. Thereupon the appellant Board of Supervisors declined to plead further and the trial court granted the relief prayed for by directing and commanding the appellant to do the following:
"1. To ascertain and adjudicate whether or not the petition for the issuance of the bonds contains the genuine signatures of a majority of the qualified electors of the Walnut Consolidated School District of Quitman County, Mississippi.
"2. To ascertain and adjudicate whether or not the amount of bonds sought to be issued exceeds the statutory limitations on the amount of such bonds that might be lawfully issued.
3. If it is found that the Petition does contain the genuine signatures of a majority of the qualified electors of said District and that the amount of the bonds sought to be issued does not exceed the statutory limitation on the amount of such bonds that might be lawfully issued, the Respondents herein are hereby commanded to take immediate steps toward the issuance of the bonds prayed for in the petition."
The petition for the writ of mandamus alleged that at the July 1948 meeting of the board a majority of the qualified electors residing in the said Walnut Consolidated School District had presented a petition for the issuance of said bonds, the same having been presented in person by some of the petitioners and by their attorney; that proof was taken before the Board by the introduction of witnesses who identified the signatures of all the petitioners and disclosed that the petition had been signed by a majority of the qualified electors of the said school district according to the poll and registration books of the two voting precincts therein; that the district had been duly and legally organized and that the amount of the bonds petitioned for would not exceed any constitutional or statutory limitation on interest bearing debts; and that the board was requested to ascertain and adjudicate whether the petition did contain such majority and to adjudicate the other jurisdictional facts above mentioned, but that the board declined to do so.
However, an order of the Board of Supervisors entered at the time, and which is made an exhibit to the petition for writ of mandamus, discloses that the petition for the issuance of the bonds came on to be considered by the board and that the board ordered "that said petition be rejected and disallowed . . ."
No reason is assigned in the above mentioned order for rejecting and disallowing the petition. If the same had been granted, then unquestionably it would have been necessary for the order to have recited that the petition had been signed by a majority of the qualified electors, that such school district was legally organized and existing, that the amount of the bonds petitioned for would not exceed any constitutional nor statutory limitation, and that the bonds were being issued for purposes authorized by law as set forth in said Section 6370, Code 1942, supra, which provides, among other things, that "on petition of the majority of the qualified electors residing in any consolidated school district, the board of supervisors may issue bonds for such consolidated school district in the manner provided for by law, to erect, repair, and equip school buildings, teachers' homes, school bonds, transportation vehicles, and for purchasing lands for schools; . . .".
The order discloses, however, that the board did in fact act on the petition. (Hn 1) And we are of the opinion that this statute in providing the board of supervisors "may" issue bonds for such a consolidated school district means that the board shall do so if they find all the jurisdictional facts to exist for so doing, since this statute was enacted in the public interest, and it was not the intention of the Legislature that a board of supervisors may arbitrarily decline to issue bonds where such jurisdictional facts exist for their issuance. Had such facts been affirmatively adjudicated by the board, or by the circuit court upon an appeal from said order on bill of exceptions, to be present, then it would have become a mere ministerial duty to proceed with the issuance of the bonds as petitioned for, and the performance of such a remaining duty could be compelled by mandamus.
However, under the holding in the case of Board of Supervisors of Rankin County v. Lee et al., 147 Miss. 99, 113 So. 194, and we think that the rule therein announced is well settled by other decisions of this Court, (Hn 2) it was the judicial function of the board to decide the question of whether or not a majority of the qualified electors of the school district had petitioned for the issuance of the bonds, to determine whether the amount petitioned for would exceed any statutory limitation thereon, and to determine whether or not the same were to be issued for purposes authorized by law. This being true, the writ of mandamus could not be invoked to compel the board to do more than to act upon the petition by either granting or rejecting the same. (Hn 3) When a board of supervisors rejects such petition for reasons which it deems sufficient, or for no reason at all, without adjudicating the necessary jurisdictional facts to exist, the remedy of the petitioners is for an appeal to the circuit court under Section 1195, Code of 1942. Robinson et al. v. Board of Supervisors of Itawamba County, 105 Miss. 90, 62 So. 3; Board of Supervisors of Rankin County v. Lee, supra. On such an appeal "if the judgment be reversed, the circuit court shall render such judgment as the board . . . ought to have rendered . . ." In other words, the petitioners could have obtained in the circuit court on appeal an adjudication of all the jurisdictional facts which are alleged to have existed by having embodied such facts in a bill of exceptions.
The petition for the writ of mandamus was returnable to the September 1948 term of the Circuit Court and which was the same term at which an appeal would have been triable.
Section 1109, Code of 1942, authorizes the issuance of a writ of mandamus only in cases where there is not a plain, adequate and speedy remedy in the ordinary course of law. And it seems to be conceded that if in determining the jurisdictional facts hereinbefore mentioned the board was acting judicially the writ of mandamus would not be available to compel them to render the kind of judgment sought by the petitioner, but would be available only to compel the board to act on the petition.
If on an appeal the circuit court had found the necessary jurisdictional facts to exist, as such court may have done, then the Court could have compelled the performance of the ministerial duty of issuing the bonds if the board had declined to do so contrary to the order of the Court.
From the foregoing views it follows that the judgment of the trial court must be reversed and judgment rendered here in favor of the appellant dismissing the petition for mandamus.
Reversed and judgment here for the appellant.